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National Democrats have given up on Ohio Representative Steve Driehaus's reelection campaign, but the race took an interesting turn today when the Ohio Elections Commission agreed to allow Driehaus's case against a pro-life group, the Susan B. Anthony List, to proceed.

Rep. Steve Driehaus (D, Ohio)

A three-member panel of the commission ruled that there was "probable cause" to believe that the SBA List is falsely trying to claim in an ad that Driehaus "voted for taxpayer-funded abortion" in the national health care law. The panel's vote was two-to-one, with a Republican member voting against Driehaus and a Democratic member and an independent member voting in Driehaus's favor. The independent member, Harvey Shapiro, had to recuse himself from a 2006 gay marriage elections case because he had donated $1,000 to the campaign against a gay marriage ban. The case will be heard by the seven-member Ohio Elections Commission, which is comprised of three Democrats, three Republicans, and the independent Shapiro. "A criminal conviction for making false campaign statements is punishable by up to six months in jail and/or a fine of up to $5,000," Cincinnati.com reports.

The SBA List had tried to place its ad on four billboards earlier this month, but a lawyer for Driehaus convinced the billboard company not to run the ads while the case is pending. The SBA List says the commision is squelching the group's free speech rights.

“The Ohio Elections Commission has allowed Steve Driehaus to achieve his strategic objective of preventing constituents from learning the truth about his vote in favor of taxpayer funding of abortion in the health care reform bill," SBA List president Marjorie Dannenfelser said in a statement. "The larger problem here is a public official’s attempt to use a criminal statue to silence legitimate debate on his record. The proper place for public policy debate is in the public square, not in an Elections Commission or criminal court. The SBA List will see this process through to the end and vigorously defend our position that the health care reform bill, supported by Steve Driehaus, allows for taxpayer funding of abortion."

The commission may not even hold a full hearing until October 28--just days before the election. "The Executive Director of the Ohio Elections Commission told me that their normal practice would be to schedule the hearing for the next available time the Commission meets, which is October 28," says SBA List lawyer Joseph E. La Rue. "However, the Commission does not have to follow their normal practice. So, until the Commission officially informs us of the hearing date, we cannot say for certain when the hearing will be."

Driehaus was a member of Bart Stupak's group of pro-life House Democrats who said they wouldn't vote for the version of Obamacare passed by the Senate because it provided federal funding for elective abortions. Stupak, Driehaus, and others agreed to vote for the version of the Senate bill in exchange for an executive order by the president. But one Democrat in Stupak's group, former Notre Dame professor Dan Lipinski of Illinois, dissented. Lipinski said that he told Stupak: "the executive order probably would not stand [in court] and even if it did stand, it only covered part of the abortion funding—the direct funding of abortion [at Community Health Centers], not the fees for [subsidized] health plans.”

Indeed, the text of the executive order simply affirms the Senate bill's main abortion-funding provision--that individuals in the federally subsidized insurance exchanges, which go online in a few years, will be able to purchase policies that cover elective abortions. Stupak claimed over the summer that the language on abortion he voted for was different from the Senate bill, but that's incorrect:

Three months after his career-defining health care vote, Michigan Democratic representative Bart Stupak still bristles at questions surrounding the deal he cut with President Obama on abortion. “The executive order says public funds cannot be used for abortion,” says Stupak, and those who say otherwise are “dishonest.”

Stupak may not be dishonest, but he’s certainly mistaken about the executive order that secured his vote, and the votes of other self-proclaimed pro-life Democrats, for Obamacare. Doesn’t the executive order simply affirm the Senate bill’s main abortion-funding provision that Ben Nelson signed off on—a provision that Stupak called “unacceptable” back in December? “I didn’t like the Nelson language on December 24, and up through that time,” Stupak replies. “Then there were changes in it, in the final bill. They cleaned it up quite a bit. There were changes made.” In fact, the abortion language passed by the Senate on December 24 is identical to the language signed into law by President Obama on March 23.

“I didn’t think we were going to get into the nitty gritty,” Stupak says after I ask him about the section of the executive order that says subsidized plans may cover elective abortions so long as federal subsidies are “segregated” from private dollars—the main funding mechanism of abortion in the bill and something Stupak had long rejected as a meaningless bookkeeping scheme. “I’m happy to call back if you want to get into the nitty gritty,” he says, “but in all honesty I don’t have [the executive order] sitting here in front of me.” Stupak said that on June 15. He never called back.

The Department of Health and Human Services had to issue a rule prohibiting states from funding abortions for those in the federally funded "high-risk pool" program. The National Right to Life Committee pointed out that the fact HHS had to issue this rule is proof the law itself did not prohibit abortion funding.

The NRLC submitted a 23-page affidavit to the Ohio Elections Commission explaining the provisions in the national health care law that fund abortions.